| HSBC Bank USA, N.A. v Forde |
| 2015 NY Slip Op 00729 [124 AD3d 840] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| HSBC Bank USA, N.A., as Trustee for Home EquityLoan Trust Series ACE 2006-HEI, Appellant, v Millian Forde, Respondent, etal., Defendants. |
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F.Battista of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Schack, J.), entered February 26, 2014, which denied itsmotion to vacate an order of reference of the same court (Ambrosio, J.) dated September9, 2009, and for the issuance of a new order of reference, and, sua sponte, directed thedismissal of the complaint and cancelled a notice of pendency filed against the subjectreal property.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, sua sponte, directed the dismissal of the complaint and cancelled a notice ofpendency filed against the subject real property, is deemed to be an application for leaveto appeal from that portion of the order, and leave to appeal is granted (see CPLR5701 [c]); and it is further,
Ordered that the order is reversed, on the law and in the exercise of discretion,without costs or disbursements, and the plaintiff's motion to vacate the order of referencedated September 9, 2009, and for the issuance of a new order of reference is granted; andit is further,
Ordered that the matter is remitted to the Supreme Court, Kings County, for furtherproceedings before a different Justice.
In August 2005, the defendant Millian Forde executed a note, pursuant to which hepromised to repay the sum of $370,000 that he borrowed from Fremont Investment andLoan (hereinafter Fremont). The note was indorsed by a Fremont vice-president and wasmade payable to HSBC Bank USA, N.A. (hereinafter the plaintiff). The note was securedby a mortgage on Forde's real property located on Vermont Street in Brooklyn. InFebruary 2008, the plaintiff commenced this action to foreclose the mortgage, allegingthat Forde defaulted on his loan repayment obligations. Forde was personally served withthe summons and complaint on April 4, 2008. He did not appear in the action, interposean answer, or otherwise move with respect to the complaint. On September 9, 2009, theSupreme Court signed an order of reference pursuant to RPAPL 1321. In December2013, the plaintiff moved to vacate the order of reference and for the issuance of a neworder of reference to comply with the review and verification of mortgage documentsrequired by Administrative Order 548-10, which was issued by the Chief AdministrativeJudge of the State of New York on October 20, 2010, and amended by AdministrativeOrder 431-11. The Administrative Order was not in effect at the time the 2009 order ofreference was issued. Forde, although served with a copy of the plaintiff's motion, didnot respond to it. In the order appealed from, the Supreme Court denied the plaintiff'sunopposed motion and, sua sponte, directed the dismissal of the complaint and cancelledthe notice of pendency on the ground that the plaintiff lacked standing.
[*2] The Supreme Court should have granted the plaintiff'smotion to vacate the 2009 order of reference and for the issuance of a new order ofreference. The plaintiff was entitled to a new order of reference inasmuch as, in supportof its motion, it submitted documentary proof including the mortgage, the unpaid notecontaining an indorsement from Fremont to the plaintiff, the complaint setting forth thefacts establishing its claim, and an affidavit of merit from its mortgage servicer, sworn toon October 11, 2013, attesting to Forde's default, and Forde neither answered thecomplaint nor responded to the motion (see RPAPL 1321; Wells Fargo Bank, NA vAmbrosov, 120 AD3d 1225 [2014]; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 816[2013]; Bank of N.Y. vAlderazi, 99 AD3d 837, 838 [2012]; US Bank, N.A. v Boyce, 93 AD3d 782 [2012]).
Furthermore, the Supreme Court improperly, sua sponte, directed dismissal of thecomplaint and cancellation of the notice of pendency (see Wells Fargo Bank, N.A. vGioia, 114 AD3d 766, 767 [2014]; HSBC Bank USA, N.A. v Taher, 104AD3d at 817). "A court's power to dismiss a complaint, sua sponte, is to be usedsparingly and only when extraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel,83 AD3d 1047, 1048 [2011]). Here, the Supreme Court was not presented with anyextraordinary circumstances warranting sua sponte dismissal of the complaint. In fact,because Forde failed to answer the complaint and did not make a pre-answer motion todismiss the complaint, he waived the defense of lack of standing (see CPLR 3211[e]; Deutsche Bank Natl. TrustCo. v Islar, 122 AD3d 566 [2014]; Wells Fargo Bank, N.A. v Gioia, 114AD3d at 766; Onewest Bank,FSB v Fernandez, 112 AD3d 681 [2013]; HSBC Bank USA, N.A. vTaher, 104 AD3d at 817).
For the reasons set forth in Deutsche Bank Natl. Trust Co. v Islar (122 AD3dat 567), we remit the matter to the Supreme Court, Kings County, for further proceedingsbefore a different Justice. Dillon, J.P., Leventhal, Chambers and Duffy, JJ., concur.